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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
VICTOR STEVE, SR., ) Court of Appeals Nos. A-4800
) and A-4810
Appellant, ) Trial Court Nos. 2NO-92-171 Cr
) and 2NO-84-074 Cr
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1351 - June 10, 1994]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Nome, Michael I. Jeffery,
Judge.
Appearances: Randall Cavanaugh,
Anchorage, for Appellant. Eric A. Johnson,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Coats and Mannheimer, Judges,
and Wolverton, District Court Judge.*
[Bryner, Chief Judge, not participating.]
MANNHEIMER, Judge.
A Nome grand jury indicted Victor Steve, Sr., on two
counts of second-degree sexual abuse of a minor, AS 11.41.-
436(a)(1). A superior court jury found Steve guilty of one count
and acquitted him of the other. Superior Court Judge Michael I.
Jeffery sentenced Steve to 10 years' imprisonment with 3 years
suspended (7 years to serve). This sentence was imposed consecu
tively to a 5-year sentence Judge Jeffery imposed when, as a
consequence of Steve's new conviction, he revoked Steve's
probation from a previous sexual abuse of a minor conviction.
Thus, Steve received a composite sentence of 12 years'
imprisonment with 3 years suspended (9 years to serve).
Steve appeals both his new conviction and his sentence.
We affirm.
1. Indictment Issues
Steve first argues that his indictment should have been
dismissed before trial because of improprieties in the
prosecutor's presentation of the case to the grand jury. Steve
was indicted for sexually abusing two fifteen-year-old girls,
E.W. and C.S.. E.W. was the State's first witness at grand jury.
Early in her testimony, the following exchange occurred:
PROSECUTOR: Do you know somebody named
Victor Steve?
E.W.: Yes.
PROSECUTOR: How do you know Victor
Steve?
E.W.: Hmm.
PROSECUTOR: Does he live in Stebbins?
Is that a person who has lived in Stebbins
basically all his life?
E.W.: No, he was in prison for, how
many years? He came back maybe four or five
years ago.
PROSECUTOR: OK, and then you've known
him ever since then?
E.W.: Yeah.
Based on this testimony, Steve argued that the prosecutor had
intentionally elicited testimony about Steve's prior imprison
ment, thus prejudicing the grand jury's consideration of his
case.
Judge Jeffery rejected this attack on the indictment.
He found that the prosecutor had not intentionally elicited
testimony about Steve's prior imprisonment; rather, Judge Jeffery
found that E.W.'s statement had been an unanticipated response to
a neutral question concerning how long she had known Steve. In
addition, Judge Jeffery noted that the prosecutor later
instructed the grand jury to disregard E.W.'s statement. The
prosecutor cautioned the grand jury about this evidence when one
of the grand jurors asked why Steve had been in jail. The
prosecutor replied that he could not answer that question,
[a]nd I'd ask the grand jury not even to con
sider that. ... I wasn't anticipating that
answer from her. And that's not usually
admissible, and I try to keep that stuff out,
because that's not something that you should
consider. It popped out, it's in front of
you, but please don't consider that.
Judge Jeffery found this curative instruction to be a sufficient
remedy. He also found that, given the strength of the State's
case at grand jury, the erroneous mention of Steve's prior prison
sentence was harmless:
Review of the testimony ... shows that the
state's case is quite strong. ... The court
finds that the inadmissible evidence concern
ing defendant's jail time did not
"appreciably affect the outcome of the grand
jury's deliberations", given the strength of
the state's admissible evidence. The grand
jury heard ample evidence "to persuade rea
sonably minded persons that if unexplained or
uncontradicted it would warrant a conviction"
on each count.
A trial court's decision to dismiss or uphold an
indictment is reviewed for abuse of discretion. Sheldon v.
State, 796 P.2d 831, 834 (Alaska App. 1990). We do not find an
abuse of discretion here. In addition to the factors mentioned
by Judge Jeffery, we also note that the grand jurors were not
apprised of the reason Steve had been imprisoned earlier (a prior
sexual abuse conviction). We therefore uphold Judge Jeffery's
rejection of this attack on the indictment.
The State's second grand jury witness was C.S.. During
her testimony, she told the grand jurors that, because of unspeci
fied "problems", she had been hospitalized twice at North Star
Hospital. Later, one of the grand jurors asked about C.S.'s
stays at North Star Hospital. The prosecutor replied, "You can
ask her. You can't ask me." The grand juror then said, "Oh.
Sorry."
In his motion to dismiss the indictment, Steve
characterized the prosecutor's action as tantamount to
foreclosing grand jury inquiry into C.S.'s mental health. Judge
Jeffery did not view the exchange this way. He declared:
The grand jury tape discloses that the grand
juror who asked the question was satisfied
with the prosecutor's answer that the grand
jury would need to recall the witness to
obtain more information about the North Star
Hospital admission. After having been in
formed of the possibility of doing so, the
grand jury did not take the opportunity.
There is no error as to this issue.
We find no abuse of discretion in Judge Jeffery's ruling.
Steve's final attack on the indictment involves another
portion of C.S.'s testimony. A grand juror asked C.S. why she
and her friends kept going back to visit Steve. C.S. replied
that Steve gave them marijuana. She elaborated that Steve had
gotten her "stoned" a few times, and that, on these occasions, he
had told her that he wanted something in return - which C.S.
understood to mean sex. C.S. told the grand jury that she knew
"his ways -- getting other girls, I know how he does it. I know
what he tries to do. Seen it all."
A grand juror later asked a state trooper witness if
the authorities had considered charging Steve with furnishing
marijuana to the girls. The trooper replied that, even though
C.S. had made such statements, the troopers had no independent
proof that this had occurred.
In his motion to dismiss the indictment, Steve argued
that C.S.'s statements about Steve's furnishing marijuana to the
girls unfairly prejudiced the grand jury proceeding. Judge
Jeffery, however, found that this evidence was admissible because
it tended to show Steve's scheme or plan to obtain sex from the
girls in exchange for alcohol and/or drugs. Judge Jeffery
stated:
[These] statements are admissible because
they relate to the common scheme or plan of
the defendant to offer the victims and their
friends alcohol and drugs in return for sex.
Such information is not "marginal" to the
issues in the case. The statements clearly
fit the criteria for admission of such testi
mony established in Evidence Rule 404(b)(2).
In his brief to this court, Steve again argues that the
grand jury should not have heard evidence that Steve furnished
alcohol or drugs to C.S. and her friends. However, he ignores
Judge Jeffery's ruling that the contested evidence was admissible
under Alaska Evidence Rule 404(b). Because Judge Jeffery's
ruling goes unchallenged and because it is not plainly mistaken,
we find no abuse of discretion.
For all these reasons, we uphold Judge Jeffery's denial
of Steve's motion to dismiss the indictment. We now turn to
Steve's direct attack on his conviction.
2. Constitutionality of AS 11.41.445(b)
At the close of the State's case-in-chief, Steve asked
Judge Jeffery to grant him a judgement of acquittal. Steve
argued that the State had failed to rebut the possibility that
Steve reasonably believed that his sexual partners were older
than 16.1 Judge Jeffery denied Steve's motion. He found that
there was sufficient evidence to convince reasonable minds that
Steve knew that the girls were younger than 16, or, if Steve
believed that the girls were older than 16, that Steve's belief
was unreasonable.
Steve's defense at trial was, in fact, that he
reasonably believed his sexual partners were older than 16.
Under AS 11.41.-445(b), a defendant charged with sexual abuse of
a minor older than 13 but younger than 16 can defend by showing
that he or she reasonably believed that the child was older than
16. The statute declares that this defense is an "affirmative
defense" - that the defendant bears the burden of proving this
defense by a preponderance of the evidence. See AS
11.81.900(b)(1).
Pursuant to AS 11.41.445(b), Judge Jeffery instructed
the trial jury:
[I]f you decide that it is more likely than
not that the defendant reasonably believed
during the incidents charged in either or
both counts that the victim was 16 years of
age or older, then you must find him not
guilty of the charge as to that count or
counts.
Steve did not object to this instruction or to the related
instruction defining "affirmative defense".2
Three months after the jury's verdict, Steve filed a
pleading which he styled a renewal of his motion for judgement of
acquittal. For the first time, Steve argued that AS 11.41.445(b)
was unconstitutional because it made the defendant shoulder the
burden of proof on the issue of whether the defendant had a
reasonable belief that his or her sexual partner was older than
16. Judge Jeffery denied Steve's motion, and Steve raises this
same argument on appeal.
At the outset, we must point out that Steve's attack on
the constitutionality of AS 11.41.445(b) is not a "motion for
judgement of acquittal". A motion for judgement of acquittal
chal-lenges the sufficiency of the State's evidence. Steve's mid-
trial motion for judgement of acquittal did just that. In his
mid-trial motion, Steve argued that, even viewing the evidence in
the light most favorable to the State, reasonable jurors would
have to agree that Steve had reasonably believed his sexual
partners to be at least 16 years old. (Steve has not renewed
this argument on appeal.)
However, Steve's "renewed" motion for "judgement of
acquittal" raised a quite different argument. In that post-trial
pleading, Steve argued that the Alaska legislature acted unconsti
tutionally when it defined the offense; he argued that due
process requires the State to bear the burden of disproving a
defendant's asserted belief that his or her sexual partner was
old enough to consent to the sexual act. This is not a "motion
for judgement of acquittal" because it does not question the
factual sufficiency of the State's evidence. As this court
stated in State v. Martushev, 846 P.2d 144 (Alaska App. 1993),
When "the ruling of the judge, whatever
its label, actually represents a resolution,
correct or not, of some or all of the factual
elements of the offense charged," that ruling
is a judgment of acquittal[.] State v.
Thronsen, 809 P.2d 941, 943 (Alaska App.
1991) (quoting United States v. Martin Linen
Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349,
1354, 51 L.Ed.2d 642 (1977)). Conversely,
when a court orders dismissal on legal
grounds that do not require resolution of the
factual ele-ments of an offense, the order
does not amount to a judgment of acquittal,
regardless of its timing or the label
attached thereto. Cf. Alaska R. Crim. P.
12(b)(empowering the court to adjudicate,
prior to trial, "[a]ny defense, objection, or
request which is capable of determination
without the trial of the general issue");
State v. Hebert, 803 P.2d 863, 868-69 (Alaska
1990) (a trial defense based on invalidity of
regulation upon which prosecution is based
would, if established, render complaint inval
id and warrant a dismissal).
Martushev, 846 P.2d at 148.
Steve nevertheless argues that, if he is correct that
AS 11.41.445(b) unconstitutionally shifts the burden of proof,
then this court should re-examine the sufficiency of the State's
evi-dence under the newly re-allocated burden of proof to see if
Steve should be granted a judgement of acquittal. We reject this
argument.
Under the double jeopardy clause, a defendant who has
been granted a judgement of acquittal can not be tried again for
the same offense. Miller v. State, 648 P.2d 1015, 1017 (Alaska
1982). This preclusive effect of a judgement of acquittal is
prem-ised on the assumption that the government had a fair
opportunity to litigate the defendant's guilt. However, if the
defendant con-vinces an appellate court that the trial court
adopted an erroneous definition of the offense or misallocated
the burden of proof, this conclusion necessarily undermines the
assumption that the government had its fair day in court. We can
not know what evidence the State might have presented at Steve's
trial if it had known that, contrary to AS 11.41.445(b), the
State bore the burden of proof on the issue of Steve's belief
concerning the ages of his sexual partners. Thus, if Steve were
correct that AS 11.41.445(b) uncon-stitutionally shifts that
burden of proof, Steve would be entitled to a new trial, not an
outright acquittal. See State v. Marathon Oil Co., 528 P.2d 293,
296 n.7 (Alaska 1974), quoting Woodring v. United States, 337
F.2d 235, 236-37 (9th Cir. 1964), cert. denied 380 U.S. 933, 85
S.Ct. 937, 13 L.Ed.2d 820 (1965): "It is well established that
one who secures a reversal of a conviction on a mere error of law
is not subjected to double jeopardy when he is retried." Compare
Houston-Hult v. State, 843 P.2d 1262, 1265 n.2 (Alaska App. 1992)
(a defendant who contends on appeal that the trial judge should
have excluded a portion of the State's evidence can not then
argue that the State's remaining evidence was insufficient to
withstand a motion for judgement of acquittal).
We turn now to Steve's contention that AS 11.41.445(b)
is unconstitutional to the extent that it makes "mistake of age"
an affirmative defense - that is, to the extent that the statute
shifts the burden of proof to the defendant.
(a) History of AS 11.41.445(b)
At common law, rape (whether forcible or "statutory")
was a general intent crime. The government had to prove that the
de-fendant voluntarily committed an act of sexual intercourse,
and the government had to prove the circumstance that made the
sexual in-tercourse illegal (either the victim's lack of consent
or the victim's being under-age). However, the government did
not have to prove that the defendant was subjectively aware of
this circumstance.
With regard to forcible rape, the Alaska Supreme Court
stated in Walker v. State, 652 P.2d 88 (Alaska 1982):
[R]ape is a general intent crime. All that
is required for a conviction for a general
intent crime is proof of the voluntary commis
sion of the prohibited act. Thus, the state
was re-quired to prove only that Walker voli
tionally had intercourse, forcibly and
against M.M.'s will. ... [S]pecific intent
is not an element of the offense of rape[.]
Walker, 652 P.2d at 91 (citations omitted); accord Reynolds v.
State, 664 P.2d 621, 623 (Alaska App. 1983) (citiations omitted)
("At common law, rape ... was a general intent crime. ... The
state was required to prove that the defendant intentionally
engaged in the prohibited conduct, i.e., sexual intercourse to
which the complaining witness had not consented. However, it was
not necessary for the state to prove that the defendant knew or
should have known that the victim did not consent.")3
The same was true of "statutory" rape:
A man who has unlawful sexual
intercourse with a girl under the age of
consent is guilty of carnal knowledge of a
child (the so-called "statutory rape")
although she consented and he mistakenly
believed she was older than the limit thus
established. Under the prevailing view[,]
this is true no matter how reasonable the
mistaken belief may have been, as in cases in
which both her appearance and her positive
statement indicated that she was older than
the age specified in the statute, or in which
he had exercised considerable diligence in
the effort to ascertain her age.
R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982), Ch. 2, Sec. 5-
E, pp. 218-19 (footnotes omitted) (citations omitted). In
Anderson v. State, 384 P.2d 669, 671 (Alaska 1963), our supreme
court recognized (and followed) the common-law rule that persons
having intercourse with children "do so at their peril".
In the 1960s, the American Law Institute recommended in
its Model Penal Code that defendants charged with statutory rape
be given the opportunity to demonstrate that they honestly and
reasonably believed that their sexual partners were of legal age.
Model Penal Code 213.6(1) provides that defendants should bear
the burden of proving this "reasonable mistake" defense by a
preponderance of the evidence:
(1) Mistake as to age. ... When crimi
nality depends on the child's being below a
critical age [older] than 10, it as a defense
for the actor to prove by a preponderance of
the evidence that he reasonably believed the
child to be above the critical age.
Model Penal Code, Official Draft, 1962, Part II, 213.6(1). The
Model Penal Code drafters expressly chose to place the burden on
the defendant as an accommodation of competing social policies:
Traditionally, statutory rape has been a
strict liability offense, and mistake as to
the age of an underage participant has been
accorded no [exculpatory] significance. At
one time, this rule obtained in virtually
every American jurisdiction, and it continues
today in a large number of states.
. . . .
The Model Code effects a compromise
between the traditional rule disallowing
mistake in the law of statutory rape and a
general policy against strict liability
crimes. Without Section 213.6(1), the normal
operation of [Model Penal Code 2.02(3)] would
apply a mens rea of recklessness to the age
element in statutory rape. ... [However],
Section 213.6(1) provides ... that the actor
may defend in cases where the age is set
higher than 10 by proving that he "reasonably
believed" his sexual partner to be above the
specified age. The phrase "reasonably be
lieved" is defined in Section 1.13(16) ... to
establish a minimum culpability of negli
gence. The defendant must establish both the
fact and [the] reasonableness of his mistake
by a preponderance of the evidence. This
rule places a heavier burden on the defendant
than is generally provided by the Model Code
... . It was thought, however, that [this
allocation of the burden of proof] could
validly be [made] given ... the fact that,
even crediting the actor's claim of mistake,
his conduct would nevertheless amount to a
conscious disregard of community standards.
American Law Institute, Model Penal Code & Commentaries (1980),
Part II ("Definition of Specific Crimes"), Comment to Section
213.6(1), pp. 413, 415-16 (footnotes omitted) (citations
omitted).4
When the Alaska Criminal Code Revision Subcommission
drafted Alaska's revised criminal code in 1977, they followed the
Model Penal Code's recommendation. In their discussion of
Tentative Draft 11.41.400(a)(1) - the provision that ultimately
was enacted as AS 11.41.445(b) - the drafters explained that they
intended to create a "mistake of age" defense where none existed
before:
[This section] allows reasonable mistake
as to the age of the victim as an affirmative
defense under limited circumstances where
criminal liability depends on that factor.
While existing law recognizes that "persons
having illegal relations with children do so
at their own peril", Anderson v. State[,] 384
P.2d 669, 671 (Alaska 1963), the Revised Code
allows a defendant to escape liability if he
proves by a preponderance of the evidence
that he reasonably believed the victim to be
above 16 when criminality depends on the
victim being less than 16.
Alaska Criminal Code Revision, Tentative Draft (1977), Part 1,
pp. 80-81.
The Alaska legislature adopted the revised code (and,
in particular, the mistake-of-age provision) in 1978. The new
criminal code became effective on January 1, 1980. Ch. 166,
3, 25, SLA 1978.
(b) The Alaska Supreme Court's Decision in State
v. Guest
Between the time the revised code was passed and the
time it took effect, the Alaska Supreme Court confronted the
mistake-of-age issue in State v. Guest, 583 P.2d 836 (Alaska
1978). The defendant in Guest had been charged (under the former
criminal code) with statutory rape of a 15-year-old girl. Guest
asked the trial court to instruct the jury that they should
acquit him if they found that he had held a reasonable belief
that the girl was 16 years old or older. The trial judge ruled
that Guest was entitled to such an instruction, and the State
petitioned for review. Guest, 583 P.2d at 837.
The supreme court recognized "that in most jurisdic
tions a reasonable mistake of age is not a defense to a charge of
statutory rape". Guest, 583 P.2d at 837-38. Nevertheless, the
court relied on its decisions in Speidel v. State, 460 P.2d 77
(Alaska 1969), Alex v. State, 484 P.2d 677 (Alaska 1971), and
Kimoktoak v. State, 584 P.2d 25 (Alaska 1978), for the
proposition that "consciousness of wrongdoing is an essential
element of penal liability". Guest, 583 P.2d at 838. Under this
principle, the court concluded, "the charge of statutory rape is
legally unsupportable ... unless a defense of reasonable mistake
of age is allowed". Id. at 838-39.
Steve construes Guest to mean that a defendant's
awareness of the victim's age is an element of the crime - that
once a mistake-of-age defense is raised, the State bears the
burden of disproving the defense beyond a reasonable doubt. We
disagree. Guest does not directly address the question of which
party bears the ultimate burden of proof on this issue. However,
in footnote 2 of its opinion (583 P.2d at 838), the supreme court
approvingly cited AS 11.41.445(b) (which had been passed by the
legislature but had not yet taken effect), as well as statutes
from three other states (Arkansas, Montana, and Washington), as
examples of the kind of mistake-of-age defense that Alaska law
required. All of these provisions place the burden of proof on
the defendant.5 If Guest was intended to stand for the
proposition that the Alaska constitution requires the government
to bear the burden of proof, then it is reasonable to infer that
the supreme court would have addressed these statutes in a very
different manner.
Steve nevertheless argues that, regardless of what
Guest says on this issue, the Alaska legislature denied him and
similarly situated defendants due process of law when, in AS
11.41.445(b), they placed the burden of proving a reasonable
mistake of age on the defendant. Steve contends that, as a
matter of constitutional law, a defendant's knowledge of the
victim's age must be an element of the crime of sexual abuse of a
minor. Restated, Steve contends that the government can not
punish a person for a consensual act of sex unless the government
proves beyond a reasonable doubt that defendant knew that the
sexual partner was under-age, or at least proves that the
defendant acted with reckless or criminally negligent disregard
of the victim's age.
(c) Federal Constitutional Analysis
Steve's argument finds little support in federal
constitutional law. It is axiomatic that, under the Due Process
Clause of the Fourteenth Amendment to the United States Constitu
tion, the government must bear the burden of proving every
element of a crime beyond a reasonable doubt. In re Winship, 397
U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). However, the
United States Supreme Court has repeatedly held that legislatures
have considerable latitude when they define the elements of any
criminal offense.
For instance, at common law, the crime of murder
required proof of the element of "malice" - the absence of any
mitigation, justification, or excuse for the homicide. Thus, in
states using the common-law definition of murder, the government
is required to prove beyond a reasonable doubt that (for example)
the defendant did not act in the heat of passion. See e.g.,
Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508
(1975).
However, many states have adopted revised criminal
codes that abandon the common-law definition of murder and define
the crime simply as the intentional killing of another human
being. Alaska has adopted this definition of murder. See
AS 11.41.100(a)(1). Under this revised definition of murder, the
crime no longer requires proof of "malice". Thus, the defenses
of "heat of passion" and "self-defense" no longer negate any
element of the crime. That is, a killing done in the heat of
passion or in self-defense is still an intentional killing. The
fact that the defendant acted in the heat of passion or acted in
self-defense is an additional factor that does not disprove any
element of the crime, but this fact can mitigate or excuse an
intentional homicide that would otherwise be murder.
When a defense does not require disproof of any element
of the crime but rather involves proof of additional facts that
operate to justify, excuse, or mitigate the seriousness of what
would otherwise be criminal conduct, Winship no longer requires
the government to bear the burden of disproving the defense
beyond a reasonable doubt. Instead, the legislature can place
the burden of proof wherever it sees fit: the legislature may
still require the government to disprove the asserted defense, or
the legislature may require the defendant to affirmatively prove
the defense. The burden of proof is not constitutionally
compelled but can be selected on policy grounds. See Martin v.
Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987) (the
defendant can be made to prove self-defense by a preponderance of
the evidence); Patterson v. New York, 432 U.S. 197, 97 S.Ct.
2319, 53 L.Ed.2d 281 (1977) (the defendant can be made to prove
heat of passion by a preponderance of the evidence); Leland v.
Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (the
defendant can be made to prove insanity beyond a reasonable
doubt). And see Engle v. Isaac, 456 U.S. 107, 120; 102 S.Ct.
1558, 1567-68; 71 L.Ed.2d 783 (1982) (the fact that the
legislature chooses to "require[] the prosecution to prove a
particular circumstance beyond a reasonable doubt [does not
invariably mean that] it has ... defined that circumstance as an
element of the crime").
This general rule of federal constitutional law was set
forth in Patterson:
We ... decline to adopt as a constitu
tional imperative, operative countrywide,
that a State must disprove beyond a
reasonable doubt every fact constituting any
and all affirmative defenses related to the
culpability of an accused. Traditionally,
due process has required that only the most
basic procedural safeguards be observed; more
subtle balancing of society's interests
against those of the accused have been left
to the legislative branch. We therefore will
not disturb the balance struck in previous
cases holding that the Due Process Clause
[only] requires the prosecution to prove
beyond a reasonable doubt all of the elements
included in the definition of the offense of
which the defendant is charged. Proof of the
nonexistence of all affirmative defenses has
never been constitutionally required ... .
Patterson, 432 U.S. at 210, 97 S.Ct. at 2327.6
As noted earlier in this opinion, the drafters of
Alaska's revised criminal code followed the Model Penal Code
approach; they created a "reasonable mistake of age" affirmative
defense for defendants charged with engaging in sexual relations
with children older than 13 and younger than 16. The drafters of
Alaska's criminal code also followed the Model Penal Code by
placing the burden of proving this defense upon the defendant.
The Alaska legislature adopted the drafters' position when the
legislature enacted AS 11.41.445(b).
In State v. Smith, 576 P.2d 1110 (Mont. 1978), the
Montana Supreme Court upheld that state's mistake-of-age statute
against the same due process attack raised by Steve in this case.
The Montana court noted that most states do not recognize a
mistake-of-age defense to statutory rape; the Montana legislature
had, by affirmative act, created a mistake-of-age defense where
none existed before. The Montana court therefore held, under
Patterson v. New York, that the state legislature's decision
regarding which party was to bear the burden of proof was a
matter of policy, not due process.
We reach the same conclusion when we analyze Alaska's
statute under the Federal Constitution. The drafters and
enacters of AS 11.41.445(b) created a mistake-of-age defense to
relieve defendants from strict liability for sexual relations
with children older than 13 and younger than 16. However, the
defendant must prove this exculpatory mistake by a preponderance
of the evidence. This change in the law is consistent with the
constitutional guarantee of due process. As the Second Circuit
noted in United States v. Mitchell, 725 F.2d 832 (2nd Cir. 1983),
[W]e do well to bear in mind the Supreme
Court's observation that "[t]he doctrines of
actus reus, mens rea, insanity, mistake,
justification, and duress have historically
provided the tools for a constantly shifting
adjustment of the tension between the
evolving aims of the criminal law and
changing religious, moral, philosophical, and
medical views of the nature of man," Powell
v. Texas, 392 U.S. 514, 536, 88 S.Ct. 2145,
2156, 20 L.Ed.2d 1254 (1968).
Mitchell, 725 F.2d at 835.
In promulgating AS 11.41.445(b), the Alaska legislature
balanced society's interest in deterring sexual abuse of minors
against the policy of allowing defendants to show that they did
everything reasonably possible to ascertain the age of their
sexual partners. Such a balancing - and, in particular, the
decision to allocate the burden of proof to the defendant - is
within the constitutional bounds of legislative action. In light
of the United States Supreme Court's decisions in Martin v. Ohio
and Patterson v. New York, we conclude that AS 11.41.445(b) does
not violate the Federal Constitution's guarantee of due process.
(d) Alaska Constitutional Analysis
Steve also argues that AS 11.41.445(b) is inconsistent
with Speidel v. State, 460 P.2d 77 (Alaska 1969), and subsequent
decisions construing the due process clause of the Alaska
Constitution (Art. I, Section 7).
Speidel involved a prosecution under former AS
28.35.026, which made it a felony to "willfully neglect" to
return a rented car at the end of the rental term. The statute
defined "willfully neglect" to include "omit[ting], fail[ing], or
forbear[ing] ... without regard for the rights of the owner, or
with indifference whether a wrong is done the owner or not".
Speidel, 460 P.2d at 78. The supreme court held that this
definition of the crime was constitutionally defective because it
failed to require proof of an intent to injure or impair the
property interests of the owner:
It is said to be a universal rule that
an injury can amount to a crime only when in
flicted by intention - that conduct cannot be
criminal unless it is shown that one charged
with criminal conduct had an awareness or
consciousness of some wrongdoing.
. . . .
Under this [definition of "willfully ne
glects",] it is possible for one to be found
guilty of the offense when there was an
entire lack of any conscious deprivation of
property or intentional injury. If [a
defendant] fails to return an automobile out
of neglect, without any intention to deprive
the owner of his property or to convert the
property to [the defendant's] own use, or of
doing wrong to the owner, [the defendant] is
made guilty of a felony although he may have
acted unwittingly or inadvertently or negli
gently. This is contrary to the general
conditions of penal liability requiring not
only the doing of some act by the person to
be held liable, but also the existence of a
guilty mind during the commission of the act.
. . . .
Under the terms of [former] AS 28.35.026
there is no escape from a felony conviction
... for simple neglectful or negligent
failure to return a rented automobile at the
time specified in the rental agreement. To
make such an act, without consciousness of
wrongdoing or intention to inflict injury, a
serious crime ... is inconsistent with the
general law. To convict a person of a felony
for such an act, without proving criminal
intent, is to deprive such person of due
process of law.
Speidel, 460 P.2d at 78, 80.
To the extent that Speidel construed a theft-related
crime to require an "intent to deprive" element, it is
unexceptional. However, in reaching this result, the court used
language suggesting that the guarantee of due process was
violated whenever a criminal offense did not require proof "that
[the] one charged with criminal conduct had an awareness or
consciousness of some wrongdoing". Id. at 78. Construed
literally, this language would forbid such crimes as criminally
negligent homicide, AS 11.41.-130(a), which is distinguished from
manslaughter, AS 11.41.120(a), on the very basis that the
defendant acted without subjective awareness of wrongdoing. See
the definitions of "recklessly" and "criminal negligence", AS
11.81.900(a)(3) and (a)(4). Moreover, this same language casts
doubt on the constitutionality of many "general intent" crimes.
The Alaska Supreme Court soon had occasion to revisit
this issue of "awareness of wrongdoing" in Alex v. State, 484
P.2d 677 (Alaska 1971). The first question presented in Alex was
whether the crime of escape required a specific intent to "avoid
the due course of justice", or whether escape was instead a
general intent crime, requiring only that the defendant
voluntarily do acts that result in his unlawful removal from
custody. The supreme court held that escape was a general intent
crime. 484 P.2d at 678-680.
The defendant in Alex then argued that, if escape was a
general intent crime, it was unconstitutional under Speidel
because a prisoner might be convicted of a felony without "an
awareness or consciousness of wrongdoing". Id. at 680. The
court rejected this expansive interpretation of Speidel:
[In Speidel, we] emphasized that under
the statute a person might suffer a felony
conviction for a simple negligent failure to
act. To make such an act a serious crime
without regard to an awareness of wrongdoing
or the intentional infliction of injury was,
in our opinion, inconsistent with the general
law. ... We solidly adhere to that holding
today.
. . . .
This court would not then and will not
now sanction conviction of a serious felony
for mere inadvertence or simple neglect.
However, undue emphasis should not be placed
upon our use of the term "wrongdoing" in
[Speidel]. It must be remembered that in
Speidel we were dealing with a larceny-type
offense. In reaching our decision in
Speidel, we relied upon Morissette v. United
States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed.
288 (1952), where the United States Supreme
Court noted that[, when] dealing with one of
the "larceny-type offenses"[,] courts have
historically emphasized an intention to
wrongfully deprive. ... However, when speak
ing of the requisites of a general criminal
intent as applied to all crimes, the Supreme
Court did not emphasize a specific awareness
of wrongfulness. Instead, the Court approved
more general definitions of the required
mental element[.]
. . . .
When one considers Speidel and
Morissette, it is apparent that those cases
deal with the necessity of basing serious
crimes upon a general criminal intent as
opposed to strict criminal liability which
applies regardless of intention. The goal of
these cases is to avoid criminal liability
for innocent or inadvertent conduct. The use
of the phrase "awareness of wrongdoing" ...
does not mean a person must be aware that the
conduct he is committing is specifically
defined as a wrongful act. Nor does it mean
that a person must know an act is proscribed
by law. ...
. . . .
[A]s applied to crimes generally, what
is imperative is that an accused's act be
other than simply inadvertent or neglectful.
What is essential is not an awareness that a
given conduct is a "wrongdoing" in the sense
that it is proscribed by law, but rather an
awareness that one is committing the specific
acts which are defined by law as a
"wrongdoing". It is ... no defense that one
was not aware his acts were wrong in the
sense that they were proscribed by law. So
long as one acts intentionally, with
cognizance of his behavior, he acts with the
requisite awareness of wrongdoing. In the
words of Justice Holmes:
If a man intentionally adopts cer
tain conduct in certain circumstanc
es known to him, and that conduct
is forbidden by the law under those
circumstances, he intentionally
breaks the law in the only sense in
which the law ever considers
intent.
Ellis v. United States, 206 U.S. 246, 257,
27 S.Ct. 600, 602, 51 L.Ed. 1047, 1053
(1907).
Alex, 484 P.2d at 680-82 (citations omitted). The supreme court
then held that, if Alex intentionally walked away from the Palmer
correctional camp, aware that he was leaving the camp, he acted
with sufficient "awareness of wrongdoing" to support his felony
conviction. Alex, 484 P.2d at 682.
The next case in this series is Kimoktoak v. State, 584
P.2d 25 (Alaska 1978). In Kimoktoak, the supreme court held
(with hardly any discussion) that Alaska's hit-and-run statute,
AS 28.35.060, would be unconstitutional unless it were
interpreted to include an element of scienter. That is, the
court held that a defendant can be convicted of failing to remain
and render assistance at the scene of an accident only if the
government proves that the defendant knew that there had been an
accident. Id. at 29-30. Explaining its ruling, the supreme
court stated: "In Speidel, ... [w]e rejected the notion that mere
inadvertent or unwitting failure to perform a legal duty could
constitute a felony[.]" Kimoktoak, 584 P.2d at 29.
This encapsulation of the Speidel rule is instructive.
In both Speidel and Kimoktoak, defendants faced felony liability
for an omission - failing to perform an act required by law. In
Speidel, the defendant had failed to return a rental car; in
Kimoktoak, the defendant had failed to stop and render aid at the
scene of an accident. The result in both cases can be explained
by the rule that, when criminal liability is predicated on a
person's failure to perform an act required by law, the
government must at a minimum show (1) that the defendant was
aware of the circumstances that created the legal duty to act,
and (2) that the defendant voluntarily refrained from performing
the act. Or, in the words of Kimoktoak, the "mere inadvertent or
unwitting failure to perform a legal duty [can not] constitute a
felony". Kimoktoak, 584 P.2d at 29.
In Speidel, the defendant car-renter was presumably
aware of the circumstances giving rise to the legal duty to
return the car, but the statute did not require proof that the
defendant had voluntarily refrained from returning the car. The
supreme court remedied this deficiency by calling for the
government to prove that the defendant's failure to return the
car was motivated by an intent to appropriate the car to his own
use or impair the property interest of the owner.7 In Kimoktoak,
the problem was that the statute apparently did not require the
motorist to be aware of the circumstances giving rise to the duty
to remain at the scene; that is, the statute did not explicitly
require proof that the driver was aware that an accident had
occurred. Kimoktoak, 584 P.2d at 31-33. See W. LaFave and A.
Scott, Substantive Criminal Law (1986), 3.3(b), Vol. 1, pp. 289-
290:
Though one might otherwise be under a
duty to act, so that omission to do so would
ordinarily render [one] criminally liable,
the prevailing view is that [one] may not be
held liable if [one] does not know the facts
indicating a duty to act. Thus, ... most
courts have taken the view that one may not
be convicted under a hit-and-run statute if
[one] was unaware of the fact that an
accident has occurred.
This same rule explains the supreme court's decision in
Hentzner v. State, 613 P.2d 821 (Alaska 1980). In Hentzner, the
defendant was convicted of selling unregistered securities. The
gist of the crime was again the defendant's failure to perform an
act required by law - registering the securities before offering
them to the public. The supreme court ruled that, in the context
of selling unregistered securities,
[c]onsciousness on the part of the actor that
he is doing the act does not carry with it an
implication that he is aware that what he is
doing is wrong. In such cases, more than
mere conscious action is needed to satisfy
the criminal intent requirement. ... Thus,
criminal intent in the sense of consciousness
of wrongdoing should be regarded as a
separate element of the offense[.]
Hentzner, 613 P.2d at 826.
As the supreme court's decision in Guest demonstrates,
the due process concept of "consciousness of wrongdoing" applies
to a broader range of crimes than simply crimes of omission.
However, the foregoing discussion points out the difference
between Steve's case and the Speidel, Kimoktoak, and Hentzner
cases. The defendants in Speidel, Kimoktoak, and Hentzner all
faced criminal penalties because they failed to perform an act
required by law. Steve, on the other hand, like the defendant in
Alex, was charged with a general intent crime - voluntarily
committing an affirmative act. In prosecutions for general
intent crimes, the requirement of "consciousness of wrongdoing"
does not require proof that the defendant knew he or she was
violating a legal prohibition. To reiterate what the supreme
court said in Alex,
[A]s applied to crimes generally,
what is imperative is that an accused's act
be other than simply inadvertent or
neglectful. What is essential is not an
awareness that a given conduct is a
"wrongdoing" in the sense that it is
proscribed by law, but rather an awareness
that one is committing the specific acts
which are defined by law as a "wrongdoing".
It is ... no defense that one was not aware
his acts were wrong in the sense that they
were proscribed by law. So long as one acts
intentionally, with cognizance of his
behavior, he acts with the requisite
awareness of wrongdoing.
Alex, 484 P.2d at 681-82.
Steve's act of sexual intercourse with E.W. was not
"simply inadvertent or neglectful"; it was a knowing and volun
tary act. E.W. was under 16 years old at the time. Under the
traditional law of rape, these two elements were sufficient to
establish Steve's guilt.
In Guest, the supreme court held that "[a] charge of
statutory rape is legally unsupportable ... unless a defense of
reasonable mistake of age is allowed". 583 P.2d at 838-39. If
these words are read at face value, the supreme court did not
alter the elements of the crime; instead, the court recognized a
new defense. That is, the court held that even if the government
proved the elements of the crime, a defendant must still be
allowed to raise the defense of reasonable mistake of age. As we
noted above, this interpretation of Guest is supported by the
supreme court's approving citation of AS 11.41.445(b) and the
statutes from Arkansas, Montana, and Washington. All of these
statutes recognize a mistake-of-age defense, but they all
allocate the burden of proof to the defendant - a result that
would not be constitutional if the defendant's awareness of the
victim's age were an element of the offense.
We do not believe that society's basic notions of
justice and fairness are violated when the law imposes criminal
liability on a defendant (1) who has sex with an under-age child,
(2) who claims that he or she made a mistake concerning the
victim's age, but (3) who can not show that the mistake was a
reasonable one. The Alaska legislature has declared that people
must not have sexual relations with children younger than 16.
Human beings generally exhibit visible signs of their age. While
it may not be possible to determine a person's exact age from
looking at them and talking to them, in most instances it is
possible, using these indicators, to identify 13-, 14-, and 15-
year-olds as still being in their teens. Accordingly, it is fair
to expect people to exercise caution when choosing a youthful
sexual partner. And, if the defendant claims that a mistake was
made, it is fair to expect the defendant to prove the reasonable
ness of that mistake - to prove that the mistake was not the
result of intoxication, lack of concern, or other unreasonable
behavior.
We thus reject Steve's argument that Guest altered the
elements of statutory rape (now codified as sexual abuse of a
minor). Instead, Guest declares that reasonable mistake of age
must be allowed as a defense to the crime. Because the
defendant's belief concerning the victim's age is a matter of
defense, not an element of the crime, the legislature can
constitutionally allocate the burden of proof where it sees fit,
in light of the societal interests involved. We therefore hold
that AS 11.41.445(b) is constitutional.8
3. Sentencing Issues
We now turn to Steve's arguments relating to his
sentencing. Steve first challenges the pre-sentence report
prepared by the Department of Corrections.
On October 1, 1992, Judge Jeffery ordered the Nome
probation office to prepare an updated pre-sentence report on
Victor Steve, to supplement the one prepared from Steve's prior
offense. Probation Officer Stephen D. Korenek, who had prepared
the pre-sentence report on Steve in 1984, was assigned to prepare
the updated report. In this updated report, Korenek urged the
superior court to impose the maximum term of imprisonment.
On January 8, 1993, Steve filed, pro se, a document
entitled "statement of defense" in which he urged the court not
to consider Korenek's pre-sentence report. Steve argued that
Korenek had "fashioned his presentence report with a personal ill
will". Steve attached a copy of a federal civil rights complaint
in which he had named Korenek as a defendant. Although Steve had
dismissed this complaint in October, 1992, he argued that the
complaint had engendered a continuing bias in Korenek.
At Steve's sentence hearing, Korenek testified that he
had learned of Steve's civil rights suit in early 1992. An
attorney in the Department of Law had assumed the defense of the
lawsuit, and this attorney informed Korenek that the State would
indemnify him in the event that a judgement was entered against
him.
Moreover, according to Korenek, he had spoken with
Steve during his preparation of the pre-sentence report, and
Steve had expressed no reservations about Korenek's role in the
preparation of the report. Korenek declared that the civil
lawsuit had not affected his preparation of the pre-sentence
report.
Based on this testimony, Judge Jeffery rejected Steve's
challenge to Korenek's preparation of the pre-sentence report.
First, Judge Jeffery concluded that "the issue had been waived by
the failure of the defense to bring it up in a timely manner".
Second, Judge Jeffery found that Steve's challenge to the pre-
sentence report was a "manipulation of the system to try ... to
remove the experienced people from consideration of the case".
Finally, Judge Jeffery concluded that Steve's lawsuit had not
affected Korenek's preparation of the pre-sentence report. For
these reasons, Judge Jeffery ruled that "the report [was]
properly prepared by ... Korenek".
The question on appeal is whether Judge Jeffery abused
his discretion when he accepted and relied on Korenek's pre-
sentence report. We note that the facts of this case strongly
suggest that Steve waived this issue by failing to raise it in a
timely fashion. Steve knew that Korenek was assigned to write
the report; he personally met with Korenek during the preparation
of the report. Steve did not object to Korenek's preparation of
the report until Steve discovered that Korenek had recommended
the maximum sentence. Compare Johnson v. State, 739 P.2d 781,
784 (Alaska App. 1987) (a defendant who appeared with counsel,
entered a plea, and was sentenced by a judge, all without
objection, waived his right to later seek reversal of his convic
tion and sentence by challenging the judge for cause).
Moreover, even if Steve preserved this issue, we
conclude that Judge Jeffery did not abuse his discretion.
Korenek testified that he had been assured by the Department of
Law that he would be indemnified by the State for any judgement
against him. He further testified that he paid little attention
to the lawsuit, and he declared that the lawsuit had not affected
his preparation of the pre-sentence report. Judge Jeffery found
this testimony to be credible, and that finding is not clearly
erroneous. Moreover, Steve has not pointed to any statements in
the pre-sentence report that he believes are purposely inaccurate
or unfairly slanted against him. We therefore conclude that
Judge Jeffery did not abuse his discretion when he rejected
Steve's challenge to the pre-sentence report.
Steve's next sentencing argument concerns Judge
Jeffery's rejection of a proposed mitigating factor. Steve was
subject to presumptive sentencing because he was a third felony
offender convicted of second-degree sexual abuse of a minor, a
class B felony. AS 11.41.436(b). He therefore faced a presump
tive term of 6 years' imprisonment. AS 12.55.125(d)(2).
Steve's prior felonies were from 1984, when he was
convicted of two counts of second-degree sexual abuse of a minor
for sexually abusing his eight-year-old daughter. Steve received
a composite sentence of 10 years' imprisonment with 4 years
suspended (6 years to serve). This sentence was affirmed on
appeal: see Steve v. State, Memorandum Opinion No. 868 (Alaska
App., June 26, 1985).
At his sentencing in the present case, Steve contended
that his offense was mitigated because his conduct was among the
least serious included in the definition of second-degree sexual
abuse of a minor, a mitigator under AS 12.55.155(d)(9). Judge
Jeffery rejected this statutory mitigating factor, making the
following findings:
I find [that] this [mitigator] has not been
shown by clear and convincing evidence. ...
[T]aking all the surrounding circumstances,
the great age difference [between Steve and
his victim], the involvement of alcohol, ...
Mr. Steve's status as someone being on felony
probation for the exact same offense -- all
of that would prevent me from finding [that
Steve's offense] is among the least serious,
even if [the victim] had gone in there [total
ly] consensually[.] The fact that ... she,
in fact, was somewhat forcefully taken back
to the bedroom certainly prevents me from
saying this is among the least serious.
Steve argues that the facts of this case indicate that
the victim sought him out and refused to leave his residence.
Steve also argues that the victim actively deceived Steve into
believing that she was sixteen. However, these assertions depend
on a view of the facts most favorable to Steve. As a reviewing
court, we must view the facts in the light most favorable to
upholding Judge Jeffery's ruling, and we must affirm the superior
court's finding unless it is show to be clearly erroneous.
Degler v. State, 741 P.2d 659, 661 (Alaska App. 1987).
As Judge Jeffery noted, Steve furnished his victim with
alcohol, encouraged her to become intoxicated, and then led her
into the bedroom and removed her clothes. Steve was 53 years old
at the time of the offense, much older than his 15-year-old
victim. For these reasons, Judge Jeffery was not clearly
erroneous when he concluded that Steve's conduct was not among
the least serious included in the definition of the offense.
Steve also asked Judge Jeffery to refer his case to the
three-judge sentencing panel, both because the 6-year presumptive
term was manifestly unjust and because of Steve's asserted
extraordinary prospects for rehabilitation. Judge Jeffery
rejected this request. Noting that Steve had sexually abused the
minor in this case even after serving 6 years in prison for a
prior sexual abuse of a minor conviction, Judge Jeffery concluded
that the 6-year presumptive term was not manifestly unjust. And,
based on the information in the pre-sentence reports (both the
1984 report and the updated report), Judge Jeffery concluded
that, far from being extraordinary, Steve's prospects for
rehabilitation were "very guarded". Judge Jeffery's conclusions
are amply supported by the record, and we affirm them.
Steve's final argument is that his composite sentence
is excessive. Judge Jeffery found that the State had proved four
aggravating factors under AS 12.55.155(c). These were: (c)(5) -
that Steve had known that his victim was particularly incapable
of resistance due to her intoxication; (c)(18) and (c)(21) - that
Steve had previously been convicted of sexually abusing a minor,
the same crime for which he was now being sentenced; and (c)(20)
- that Steve had been on probation from this prior felony when he
committed the present offense. These aggravating factors autho
rized the court to impose a sentence exceeding the 6-year presump
tive term. AS 12.55.155(a)(2).
Judge Jeffery concluded that, based on these
aggravating factors, the 6-year presumptive term should be
adjusted upward:
[T]he presumptive term of six years, which is
already pretty severe, is going to go a long
way [toward deterring yourself and others].
However, I do feel that some upward adjust
ment is needed because of the fact that, ...
unfortunately, there was already a six-year
term, and then we have this new offense. I
am not going to make a worst offender finding
at this time though, and I do not intend to
impose a maximum term. But, still, some
upward adjustment ... is necessary to bring
it home to both you and others that when
you've got two prior sexual abuse of a minor
in the second degree [convictions], to be
doing this kind of activity while you're on
probation again is just asking for some major
consequences.
Judge Jeffery then sentenced Steve to 10 years' imprisonment with
3 years suspended (7 years to serve).
In addition, Judge Jeffery revoked Steve's probation
from his prior felony, ordering Steve to serve the 2 years
remaining from that conviction. Judge Jeffery also ordered these
two sentences to run consecutively. Thus, Steve received a
composite sentence of 12 years' imprisonment with 3 years
suspended (9 years to serve).
On appeal, Steve cites Lacquement v. State, 644 P.2d
856, 862 (Alaska App. 1982) for the contention that such a
sentence could not be imposed without an express finding that it
was based on the need to protect the public. This is wrong.
First, Lacquement dealt with a situation in which, due to the
absence of aggravating factors, the trial court lacked the
authority to impose more than the presumptive term for the
defendant's current felony. Second, Lacquement has been
modified; now any good cause suffices to justify a composite
sentence above the presumptive-term benchmark. See Farmer v.
State, 746 P.2d 1300, 1301-02 (Alaska App. 1987); Jones v. State,
744 P.2d 410, 411-12 (Alaska App. 1987).
The rule that potentially applies to Steve's case is
the Mutschler rule, Mutschler v. State, 560 P.2d 377, 381 (Alaska
1977), that a defendant can receive a composite sentence
exceeding the maximum term for his or her single most serious
offense only when such a sentence is justified by the need to
protect the public. But the maximum term for Steve's offense is
10 years' imprisonment, while Steve received a composite term of
only 9 years to serve. AS 12.55.125(d).
Steve's current offense was aggravated. Moreover, he
committed his current offense after serving a substantial prison
term for the same crime and while he was still on probation from
that prior offense. Having examined the record, we do not find
that Judge Jeffery was clearly mistaken in sentencing Steve to a
composite term of 12 years imprisonment with 3 years suspended.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgement of the superior court is AFFIRMED.
_______________________________
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
1 In this opinion, the phrase "older than 16" means that
the person has attained his or her 16th birthday - that the
person is at least 16 years old. Conversely, "younger than 16"
means that the person has not yet reached his or her 16th birth
day.
2 This defense may have been the basis of the jury's
decision to acquit Steve of the charge involving C.S.. At trial,
C.S. testified that, a few weeks before she and Steve engaged in
intercourse, she falsely told him that she was celebrating her
16th birthday.
3 The fact that common-law rape was a general intent crime
rather than a specific intent crime was important when a
defendant tried to assert that he was too intoxicated to
understand that his sexual partner was unwilling. Because rape
did not require proof that the defendant intended to overcome his
victim's resistance or even that the defendant recklessly
disregarded his victim's lack of consent, a defendant's drunken
failure to perceive his victim's lack of consent was irrelevant.
State v. Keyonnie, 571 P.2d 413, 414-15 (N.M. 1977); Boyd v.
State, 572 P.2d 276, 278-79 (Okla. Crim. App. 1977); Gallup v.
State, 559 P.2d 1024, 1026-27 (Wyo. 1977); see also United States
v. Thornton, 498 F.2d 749, 751-53 & n.12 (D.C. Cir. 1974).
4 By 1980, the American Law Institute could write:
This compromise solution has proved extremely
influential. Since promulgation of the Model Code, at
least 16 states have enacted revised statutes according
the actor a defense if he affirmatively proves [a]
reasonable belief that his partner was older than the
upper age limitation of statutory rape. Additionally,
at least six recent [legislative] proposals embody this
change. A few states ... have adopted the Model Code
position either by judicial decision or specific
statute on the subject. ... The result is that today a
majority of American jurisdictions have abandoned the
traditional rule of strict liability[.] Quite
commonly, however, jurisdictions allowing the [mistake-
of-age] defense for higher ages still disallow mistake
for the very young ages used to define the most serious
version of the offense. There are also a number of
revised criminal codes that [still] follow the
traditional view and disallow the mistake defense
completely[.]
American Law Institute, Model Penal Code & Commentaries (1980),
Part II, Art. 213, Comment to Section 213.6(1), pp. 416-17 (foot
notes omitted) (citations omitted).
5 The most current versions of the other states' statutes
are Arkansas Code 5-1-111(d) and 5-14-102(c), Montana Code
45-5-511(1), and Washington Code 9A.44.030(2), (3).
6 This court has had occasion to discuss and apply this
rule of constitutional law. In Walker v. State, 674 P.2d 825
(Alaska App. 1983), the defendant challenged the
constitutionality of AS 11.81.440(a), the statute which declares
that a defendant must establish the defense of duress by a
preponderance of the evidence. Noting that the Patterson
decision demonstrated that "the United States Supreme Court
wished to give state legislatures considerable leeway in defining
defenses to crimes", 674 P.2d at 828, this court ruled that
Alaska's duress statute was constitutional. 674 P.2d at 828-29.
This court's decision was upheld by the Ninth Circuit against a
federal habeas corpus challenge. Walker v. Endell, 850 F.2d 470
(9th Cir. 1988).
7 See also State v. Campbell, 536 P.2d 105 (Alaska 1975),
overruled on other grounds in Kimoktoak v. State, 584 P.2d at 31.
In Campbell, the defendant was convicted of violating former
AS 11.20.260, a "retention of lost property" statute that made it
a crime for a person to keep lost property he or she had found
unless the finder either advertised the discovered property in a
newspaper of general circulation or apprised the local police of
the discovered property. 536 P.2d at 105. Thus, the gist of the
offense was the defendant's failure to give public notice of the
discovery in either of the two ways listed in the statute. The
supreme court held that this statute was unconstitutional because
it did not require the government to prove that the defendant's
failure to take the required action was motivated by an intent to
deprive the owner of the property. 536 P.2d at 110, 113.
8 AS 11.41.445(b) also provides that a mistake-of-age
defense is not available when the victim was younger than 13 at
the time of the offense. Steve's case does not involve the
constitutionality of this provision, and we do not decide it.
